step 2 in the handbook

8/6/2019 Step 2 in the handbook

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022

law.62 Legally prescribed

alternatives to detention

provide immigration

ocials with clear

options or irregular

migrants and asylum

seekers to remain inthe community while

their migration case is

being resolved, as seen

in Box 2 New Zealand.

The eectiveness o such laws

relies on good implementation at

the individual level. These laws

can also include mechanisms

to monitor the use o alternatives to ensure that

any conditions or restrictions are applied in limited

circumstances and only when necessary.

Step 2.4.2 Screen and aSSeSS

the individual caSe

Screening and assessment o an individual subject to or

at risk o immigration detention are important tools in

reducing unnecessary detention.

With individual assessment, authorities can identiyand assess levels o risk and vulnerability as well as the

strengths and needs o each person. Such assessment

enables authorities to make an inormed decision

about the most appropriate way to manage

and support the individual as they seek

to resolve their migration status and to

make case-by-case decisions about the

need to detain or not, and under what

circumstances. Cost savings can be achieved

through such targeted approaches bylimiting unnecessary detention. It also

provides a process by which authorities

can ensure their decisions adhere to legal

requirements and issues o duty o care,

particularly in the case o individuals with complex

needs. Examples o such assessment rameworks are

seen in Canada,64 the United Kingdom65 and Hong

Kong (Box 5).

Screening and assessment o the individual case

can include several actors. The sections below

will describe our key areas o assessment that are

currently considered as signicant or eective case

management with migrants, seen in Figure 2.

4.2.1 lg bgs

It is o primary importance that detention is legally

applied in each case to protect individuals rom

arbitrary or wrongul detention. A process that screens

individuals against international human rights laws and

standards and national laws and policies regarding

detention can reduce the likelihood o unlawuldetention and the costly litigation and public criticism

that can entail. An assessment o legal obligations in

each individual case can establish the lawulness o

detention and identiy any legal requirements that

must be ullled.

Many countries have laws that outline mandatory

actions in particular migration cases, including

that certain vulnerable individuals, such as minors,

cannot be detained. These will vary according to

national law and, in some cases, regional agreements.

States must be extremely careul that the right to

be protected rom arbitrary detention will be upheld

should any orm o mandatory detention

be considered.66

Some o the obligations imposed by law or

established in policy that might be assessed at this

stage include those that prevent the detention o

particular groups o people, as seen with minors inFg 2: usg pp g ssss

Legal

obligations

Identity, healthand security

checks

Vulnerability

Individual

case factors

Individual

screening and

assessment:

the United

Kingdom, Hong

Kong, the U.S.A.

(in development),Canada

Alternatives to

detention in law,

policy or practice:

New Zealand,

Venezuela, Japan,

Switzerland,

Lithuania,Denmark, Finland,

Norway, Sweden,

Austria, Germany,

Canada


2/8

023

Panama (Decree 03/2008) and Belgium (Box 13) and

unaccompanied minors in Hungary (Box 3). This can

include laws that prohibit the detention o:

Citizens and residents with legal status

Unaccompanied or separated minors

Families with minors

Vulnerable groups such as refugees, survivors of

torture or human trackingLaw or policy may require that alternatives to

detention are applied or shown to be inadequate in

the individual case beore detention can be applied, as

seen in Section 4.1.

Finally, there may be laws or policies outlining the

circumstances in which people who are already in

detention must be released, as discussed in Section

4.5.1 and seen in Box 17 Argentina. These can include:

When a duty of care cannot be met within a

detention environment

When a maximum period of detention has been

reached

When a visa is issued or right to stay achieved

Incorporating legal obligations into a screening

and assessment process ensures that the decisions

regarding detention are lawul, protecting both

individuals and the state rom the harmul

consequences o unlawul or arbitrary detention.

4.2.2 h, s ks

A central component o any screening and assessment

process are standard government health, identity and

security checks. These three assessments are vital

or managing and regulating the entry and exit o

people rom the territory. A number o countries have

introduced streamlined identity, health and security

checks to minimise the use or period o detentionduring these processes.

h ks

A medical assessment allows the government

to check or any health issues, including communicable

diseases such as tuberculosis.68 Health checks enable

the government to identiy and treat key health

issues and to protect public health. They can also

be used to uphold the health o detained populations

by ensuring contagious diseases are not introduced

to detention centres (see Section 4.5.1) and to screen

out or release seriously ill people rom detention.

Health checks are sometimes used to limit any unair

burden o migrants on national health care systems;

however this must be exercised with caution to ensure

that individuals who are seriously ill do not ace

inhuman suering should they be denied medical

attention or ace deportation without the prospect o

Screen and assess the individual Assess the community setting Apply conditions if necessary

Legal obligations Case management Individual undertakingsIdentity, health and security Legal advice MonitoringVulnerability Ability to meet basic needs SupervisionIndividual case factors Documentation Intensive case resolution Negative consequences

Box 3.Legislation establishing that unaccompanied minors

are not to be detained Hungary

Section 56 of Act II of 2007 on the Admission and Rights

of Residence of Third-Country Nationals establishes

that unaccompanied minors cannot be detained for

migration matters in Hungary. A shelter houses 1418

year old minors who enter Hungary without an adult.67

This project is run by a national non-governmental

organisation and funded by the European Refugee

Fund and the Hungarian government. At the time

of interview, the shelter was housing 80 residents

mostly from Afghanistan and Somalia. Bedrooms are

shared between 24 residents. Facilities include lounge

rooms; activities rooms with billiards, ping-pong and

table soccer; sports hall; and classrooms for Hungarian

language classes. The staff are highly committed to

supporting the wellbeing of residents. Legal support

is available through a specialist legal aid organisation.

In partnership with another non-governmental

organisation, the shelter has worked with one of

the local schools to create appropriate education

opportunities for this group of young people.


3/8

024

appropriate medical care on return.69 Sweden

oers health checks to asylum seekers on

arrival but this is only mandatory i there

are visible signs o illness that may impact

public health.70

i ksIdentity checks establish the key elements

o a persons identity such as their name,

country of origin, country of citizenship

and date o birth. This is sometimes easily

established when identity and travel

documents, such as passports, concur with

all other evidence. However, establishing

identity can prove dicult i the person has

been orced to fee a country o persecution

without original documentation or i they

are attempting to enter under an assumed

name.71 This research cannot speak to these

issues; however, the inability to provide

documentation establishing identity should

not lead to prolonged detention, which may render

detention arbitrary. Many countries house asylum

seekers in open accommodation centres while

undertaking identity conrmation, including Sweden,

Finland and Germany, while Canada directs

its ocials to release individuals who are

co-operating with eorts to establish theiridentity but whose identity cannot be

established.72

S ks

A security check establishes that the

individual concerned does not pose a

threat to national security or public order. A

history o participating in terrorist networks

or human rights abuses may, among

other things, preclude entry into the territory i it is

considered an issue o national security or public

order. Countries that include security concerns in

risk assessments include the United Kingdom, the

U.S.A. and Hong Kong (Box 5). Such checks should be

undertaken as soon as possible and in a timely manner

to ensure detention is not prolonged unnecessarily. As

with identity checks, individuals who are co-operating

with eorts to undertake a security check should not

be orced to endure prolonged detention.

Individuals who are considered a security

risk through this process must have an

opportunity to understand the basis o that

assessment and have the chance to provide

urther inormation to deend their claims

beore an independent body with legaladvice. The assessment o risk associated

with migrants who have completed a prison

sentence is included as an issue o character

in Section 4.2.4.

4.2.3 vb

An assessment o vulnerability can ensure

a management program is sensitive to the

particular needs o vulnerable individuals

and incorporates appropriate support.

Such an assessment can identiy those

individuals who require additional support

to meet their basic needs or undertake daily

activities, as well as identiying those who

require extra assistance to understand and negotiate

migration procedures and to meet the conditions o

their release. Vulnerable individuals may have fewer

personal resources to enable them to cope with the

detention environment and may be at

higher risk o harm.73 In some countries it

has been established that some vulnerablegroups should never be detained, as

discussed in Sections 4.1 and 4.2.1. Vulnerable

individuals are best protected rom the

harms associated with detention through

management in a community setting.

Vulnerability assessments identify the

ways in which an individuals position

in society places them in an unequal

relationship with others. Recent work

on this concept ocuses on the contexts

that create vulnerability by raming assessments

around what people may be vulnerable to.74 However,

most vulnerability assessments currently in use identiy

certain categories o people as being vulnerable

based on particular personal characteristics.75 For the

purposes o this report we will discuss our areas that

have traditionally been used to identiy vulnerable

groups, as seen in Figure 3.

Provision for

release of othervulnerable

individuals in l aw,

policy or practice:

Belgium, Malta,

Canada, Indonesia,

Sweden, New

Zealand, Australia

Children, including

unaccompanied

minors, not

detained or a

provision for

release into an

alternative inlaw, policy or

practice: Belgium,

Italy, Ireland,

Philippines,

Hungary, Hong

Kong, Australia,

Denmark,

Netherlands, the

United Kingdom,

France, Panama,

New Zealand


4/8

025

ag

Vulnerability assessments should identify those

individuals whose age places them in a position o

vulnerability. Economic, political and personal power in

society is oten dependent on age. Elderly people who

are rail or no longer able to work are oten dependent

on others to provide or their basic needs.

76

Similarly,

children mostly rely on adults to provide or their basic

needs. In addition, children are at a time o lie when

they are developing their cognitive and emotional

capacities and any impairment at this point in their

development may impact on their uture capabilities.

International convention protects children by directing

authorities to pursue the best interest o the child.

77

Minors who are travelling alone, or who are not with

their own amily, are particularly vulnerable during the

migration process. Age assessments o minors should

be undertaken only as a last resort with the childs

consent by independent proessionals in a way that is

culturally sensitive and gender appropriate. Children

should be given the benet o the doubt when disputes

over age arise.78 Examples responding to minors as a

vulnerable group can be seen in Box 3 Hungary, Box

5 Hong Kong, Box 4 Philippines and Box 13 Belgium.

G / ds

Gender, gender identity, sexual orientation and visible

markers o diversity can create vulnerability in some

contexts. Women at risk, nursing mothers and pregnantFg 3: assssg b

Age

Gender / Diversity

Health

Protectionneeds

Elderly and children, particularly

unaccompanied and separated minors

Women at risk, nursing mothers and pregnant

women; and those at risk due to sexual orientation

or gender identity

Physical and mental ill health or disability and

psychosocial and welare actors

Reugees, asylum seeker s, stateless persons,

trafcked persons, survivors o torture and trauma

and o sexual and gender-based violence



Box 4.Releasing refugees, asylum seekers and vulnerable

groups from detention Philippines

The Philippines makes use of a recognisance release

model by issuing documentation to undocumented

asylum seekers.84 Under Section 47(b) of the

Immigration Act of 1940, the President is authorisedFor humanitarian reasons, and when not opposed

to the public interest, to admit aliens who are

refugees for religious, political, or racial reasons,

in such classes of cases and under such conditions

as he may prescribe. In addition, Section 13 of the

Department of Justice Department Order No. 94,

series of 1998 states if the [refugee] applicant

is under detention, the Commission may order

the provisional release of the applicant under

recognizance to a responsible member of the

community.85

This Department Order formalised the relationshipbetween the Department of Justice, UNHCR and

non-governmental organisations. Through this

relationship, an undocumented or unauthorized

arrival in detention who seeks asylum may be

released by order of the Department of Justice.

In practice an asylum seeker is given a Certification

of Status in coordination with the UNHCR. This

document is sent to the Immigration Commissioner

to complete and issue and provides the basis for the

discretionary release of the asylum seeker.

The only condition is that the asylum seeker agrees

to follow the requirements of the refugee statusdetermination process.

Further to this, children are generally not

detained. Undocumented children located at the

border are generally not detained, or if so are

released as a matter of course following referral to

the Department of Social Welfare and Development,

who are delegated as the responsible guardians and

provide social work, shelter and healthcare services.


5/8

026

women are likely to be more vulnerable in a detention

setting. Sexual orientation and gender identity can

also create vulnerability, particularly in a detention

context.79 Identiying these issues during a vulnerability

assessment can assist in ensuring management

choices include a sae living environment, as seen in

Box 13 Belgium.

h

Those with serious issues impacting on their

health and wellbeing may be vulnerable during a

migration status determination process (see Box 5

Hong Kong and Box 12 Australia). Those with physical

or mental health issues that compromise their

independence may need assistance with daily care

and with obtaining medical attention. Such assistance

can meet duty o care obligations while also ensuring a

persons ill health does not interere with their

ability to meet the requirements o their placement

in the community. For instance, someone who is

suering rom a chronic illness may not be physically

able to maintain regular reporting requirements

despite a willingness to remain in contact with

authorities.80 Additional psychosocial actors that

impact wellbeing and create vulnerability include

a serious breakdown in amily relationships, those

experiencing violence or abuse or children with serious

behavioural problems.81

An assessment o health and wellbeing is particularly

important in detention cases, as many detainees have

limited access to appropriate medical care especially

or serious or chronic conditions. In addition, detention

may be a core contributing actor to the onset and/or

deterioration o some health conditions, as discussed in

Section 1.3.

P s

International human rights agreements highlight

the responsibility o states to protect vulnerable

individuals on their territory. Among others, these

agreements protect children, asylum seekers and

reugees, survivors o torture, victims o human

tracking, women and stateless persons.82 Regional

agreements in Latin America and Arica oer additional

protection to migrants who have been orced to leave

their country or legitimate reasons.83 In addition,

those who have experienced torture, violence or

trauma may be more vulnerable to the harmul eects

o detention and at higher risk o re-traumatisation

by being placed in a prison-like setting. Vulnerability

assessments will identiy those individuals with

protection needs and ensure they access asylum

processes and are placed in an appropriateenvironment while their status is assessed. See Box 8

Spain, Box 9 Sweden and Box 15 Hungary.

4.2.4 i s fs

There are a range o actors relating to the individual

and their situation that may be relevant when

considering what supports or extra conditions might

be needed in order to manage them appropriately

in a community setting. Some o the key areas to

incorporate in this assessment include:

Stage of migration process

Anticipated length of time until case resolution

Intended destination

Family and community ties

Character including compliance to date

Belief in the process

Sg f g pss

It is important to understand what stage an

individual has reached in the migration process

in order to place them in an appropriate setting.People who are still awaiting a primary decision

on their visa application are in very dierent

circumstances to those who have been reused a visa

at all levels and have no urther legal avenue to remain

in the country.

One area o consensus is that asylum seekers and

irregular migrants rarely abscond while awaiting the

outcome o a visa application, status determination or

other lawul process, i in their destination country.86

Statistics rom the United States Department o

Justice show that over 85% o asylum seekers who

were living independently in the community without

restrictions on their reedom o movement appeared

or their hearings with an Immigration Judge, without

any extra conditions being imposed.87 Such results

indicate monitoring or other conditions may not be

necessary or many people who are still engaged in

assessment procedures.


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027

It is important to note that this actor does not

determine compliance alone, as several countries

have successul programs working with people

in a community setting who are acing return or

deportation, as seen in Box 12 Australia and Box 13

Belgium. However, these programs take the stage o

the migration process into account and make use oadditional supports and conditions to assist these

individuals to work towards independent departure

whenever possible.

ap g f s s

The anticipated length o time until a migration process

is complete or until deportation can be achieved is also

an important actor when considering alternatives to

detention, as seen in Box 5 Hong Kong, Box 16 Australia

and Box 17 Argentina. Detention cannot be justied

when it is clear that a visa decision or deportation

will not be not achievable in a reasonable amount

o time, given that the likelihood o psychological

harm escalates the longer someone is detained.88 In

particular, persons who are stateless or who are acing

deportation to a country which is in turmoil due to

war, violent confict or natural disaster are particularly

at risk o unnecessary or prolonged detention when

alternatives are not made available to them.89

i sExisting research and evidence rom the interviews

suggest that asylum seekers and irregular migrants

rarely abscond i they are in their destination country

and awaiting the outcome o a visa application, status

determination or other legal process.90 It stands to

reason that absconding is unlikely while there is a

real prospect o gaining legal status in a preerred

destination, as remaining engaged in the process

ensures the best chance o obtaining a visa or other

legal grounds to remain.

This actor has oten been based on whether the

country itsel is categorised as a transit or destination

country. However, it is more eective to establish

whether that country is the intended destination o

each particular individual. For instance, one study in

the U.S.A. assessing compliance amongst a group o

asylum seekers released rom detention ound that

those individuals who had said Canada was their

intended destination were least likely to appear at their

immigration hearings. 91 The categorisation o the U.S.A.

as a destination country was not o consequence

to those individuals who were ocused on reaching

Canada.

F sMany migrants are driven by their commitment to their

amily and this can shape their decisions and choices

in particular ways. Families with young children are

generally considered to be less likely to abscond,

especially when engaged in social systems such as

schooling,92 as are those individuals with amily in the

community who provide an extra source o support

and point o contact.93 Those who have let amily

behind may risk working unlawully in order to provide

nancial support to loved ones struggling overseas,

even though this may compromise their migration

status. Despite these concerns, many amilies comply

with dicult restrictions or long periods in the hope

that they will eventually be reunited in a sae country. 94

Ties to the local community are also important

when assessing the individual case.95 Indications

that a person has ties with the local community can

increase condence that the person will remain in the

local area. Factors used to assess these ties include

whether the person has close amily or relatives,

strong social networks including membership in areligious organisation, a stable address, employment,

an ongoing course o study or training and ownership

o property or business. Length o time living in the

community may also be an indicator in this respect.

Notwithstanding the role o existing ties, eective

ties can be established quickly or new arrivals who

do not have amily or riends in the community but

who become engaged with community or religious

organisations through programs that provide support

and/or case management on release.

Family or community ties are oten assessed as

part o a bond or guarantor program, or a supervision

program, as discussed in Section 4.4. See also Box 5

Hong Kong, Box 11 U.S.A. and Box 14 Canada.

c g p

As in the criminal justice setting, many countries

rely on evidence o a persons character, including


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028

their previous compliance with authorities, when

considering the best option while a visa or status

process is completed or while preparing or return or

deportation. Past behaviour can be a good indicatoro uture choices and character assessments can help

in establishing reasonable expectations. For instance,

someone who has a history o co-operating with

authorities may be reasonably expected to continue

to behave in a trustworthy manner until evidence to

the contrary arises. Evidence o previous co-operation

with authorities may include complying with authorities

while completing a community service or prison

sentence. Individuals who have served a sentence or a

non-violent crime should not be automatically excluded

rom community placement options. Countries that

make use o such assessments are able to identiy

those individuals with a history o non-compliance and

introduce more stringent conditions, such as those

outlined in Section 4.4, to mitigate risk o absconding.

It should be noted that irregular migration

status in and o itsel does not indicate a likelihood

o absconding. In addition, the use o raudulent

documents when feeing persecution or other serious

harm should not be considered an issue o character.

Character assessments including previous

compliance with conditions o release or departure areactors used to assess fight risk in, inter alia, Australia

(Box 16); Canada; Hong Kong (Box 5); South Arica; the

United Kingdom and the U.S.A.

Bf pss

As described in Section 3, evidence rom this research

shows that asylum seekers and irregular migrants are

more likely to accept and comply with a negative visa

or status decision i they believe they have

been through a air reugee status or visa

determination process; they have been inormed

and supported through the process; and they have

explored all options to remain in the country legally.96

In contrast, those individuals who believe their case has

never been heard properly or who have elt that the

process has been unair are more likely to appeal

a negative decision or nd another avenue to remain in

the country.97 An assessment o an individuals



Box 5.Identifying individuals who do not need to be detained Hong Kong

Authorities in Hong Kong SAR undertake screening

and assessment of irregular migrants when

considering detention.100 Current detention policy

states that [i]n determining whether a person

should be released or detained, the Director/

Secretary will take into consideration all the

relevant circumstances of the case, including:

(i) whether the persons removal is going to be

possible within a reasonable time;

(ii) whether that person concerned constitutes a

threat / security risk to the community;

(iii) whether there is any risk of that persons

absconding and/or (re)offending;

(iv) whether that persons identity is resolved or

satisfied to be genuine;

(v) whether that person has close connection or

fixed abode in Hong Kong; and

(vi) whether there are other circumstances in favour

of release.101

After a short period of detention, most vulnerable

individuals including asylum seekers and torture

claimants 102 are released on their own recognisance,

which may include conditions of self-surety and

minimal reporting requirements. Asylum seekers

and torture claimants are issued with recognisance

papers documenting their status in the community.

A government-funded project run by a non-

government organisation arranges housing in the

community as well as direct provision of food,

clothing and medicine to these clients. Using a case

management approach, workers assess each case

on intake and develop an appropriate program

of response in line with the resources available.

Vulnerable clients, such as unaccompanied minors,

are given priority and extra support as able. The

program costs HK$109 per person per day and has a

compliance rate of around 97%.103 Case workers are

not responsible for compliance matters, although

known breaches must be reported to authorities.

Other non-governmental organisations in Hong

Kong provide pro bonolegal advice and support

services which strengthen this community context.


8/8

029

belie in the process will help identiy those who may

require additional supports to achieve a sustainable

case resolution.

This issue is best addressed by ensuring proper and

timely legal advice and case management throughout

the process, as discussed in section 4.3. However,

some people will not have aith in the bureaucraticprocess they have been through, such as i they know

o a similar case that has been accepted rather than

rejected98 or i they are acing serious threats to lie or

liberty on return that all outside existing protection

mechanisms.99 In these cases, it is particularly

important that case workers and lawyers recognise

these concerns by exploring all options to remain in

the country legally. I no urther options remain, it may

be necessary to explore alternative solutions, such

as removal to a third country, to a dierent region o

their country o origin or provision o more substantial

repatriation support, that may assist the person to

overcome their disbelie at a negative decision and

avoid the trauma and orce involved in deportation. For

more inormation on support while working towards

removal, see section 4.4.4.

Step 3.4.3 aSSeSS the community SettinG

In order to best match an individual with an

appropriate and eective program o response it is

necessary to assess those actors in the community

setting that can either support or undermine a persons

ability to comply with immigration authorities. Such

contextual actors, which are oten outside

the control o the individual, may have a

signicant impact on their ability to maintain

their commitments with authorities.

As noted in Section 3, asylum seekers and

irregular migrants are more likely to accept

and comply with a negative visa or status

decision i they believe they have

been through a air reugee status

determination or visa determination

process; i they have been inormed and

supported through the process; and i they

have explored all options to remain in the

country legally. The community setting can contribute

to this outcome i it contains appropriate supports

and structures throughout the process. Such supports

can ensure asylum seekers and irregular migrants

understand the legal and bureaucratic processes they

are involved in, the limited avenues to legal residency,

all potential uture outcomes and the impact o non-compliance. The key aspects o a community setting

that can contribute to these outcomes are:

Case management

Legal advice and interpretation

Ability to meet basic needs

Documentation

These are some o the ways in which a community

setting might mitigate concerns raised through

a screening process. They are also areas that a

government can have some control over. Authorities

can choose to strengthen the community setting, such

as by unding legal advice and case management,

to reduce concerns about compliance with the

immigration process. In addition, an accommodation

program with case management and legal support is

less expensive than keeping the individual detained or

the same period, as discussed urther in Section 5.

It is worth noting that immigration detention

is usually experienced as an extreme injustice, as

detainees eel they are treated like criminals despite

believing they are innocent o any crime.104

Thiseeling o injustice can saturate their experience o the

assessment process and lead them to believe that

their case has not been airly heard. This can make it

dicult to work towards return or those who have

been ound not to have protection needs. Deportation

can be extremely dicult to achieve i the

person does not want to comply, even with

detained populations.105

4.3.1 cs g

A number o the most successul systems

or programs identied during the research

rely on case management to work towards

case resolution while maintaining high levels

o compliance with conditions o residency

in the community and improved health and

wellbeing. Case management centres on

understanding and responding to the unique

Case management

for migration

matters by

government or by

non-government

organisation:

Sweden, Australia,

Canada, the

Netherlands,

Belgium, Spain,

Hong Kong

(Continued on p. 33.)

step 2 in the handbook

Documents